OCR Text |
Show States and other agencies, and review by the Board of Engineers for Rivers and Harbors-all substantially follow the pattern applicable to navigation improvements. Here too, projects may be undertaken only when expressly authorized by Congress. But a number of laws have been enacted in the nature of continuing authorizations for specified types of work, many allowing varying degrees of discre- tion in the use of funds. These include continu- ing authorizations relating to such matters as small flood control projects; rescue work, and re- pair, maintenance, and modification of works; bank protection to prevent flood damage to high- ways, bridge approaches, and public works; re- pair, relocation, restoration, or protection of high- ways, railways, or utilities damaged by operation of Army reservoir projects; removal of obstruc- tions and clearing channels; evacuation of flooded areas; modifications where authorization of funds is insufficient; water supply; school facilities; rail- road bridges altered at Federal expense; bridges on dams; future power; and fishways. Excepting dam and reservoir projects, law gen- erally applicable to authorizations for flood con- trol work requires that States or other local in- terests provide lands, easements, and rights-of- way necessary for the construction of the project; hold and save the United States free from dam- ages due to the construction works; and main- tain and operate all works after completion in ac- cordance with regulations prescribed by the Sec- retary of the Army. Exceptions to this general policy are provided by law in the case of certain specific projects. Dam and reservoir projects are constructed, maintained, and operated by and at the expense of the United States, unless otherwise specifically prescribed by special provision of law. With few exceptions, laws concerning funds and concerning the prosecution and operation of flood control projects, including multiple uses, are substantially like those governing navigation improvements, already discussed. Again as in the case of navigation improve- ments, the two international commissions previ- ously discussed also have functions which pertain to the control of floods. Irrigation Congress has taken special cognizance of the area vitally dependent on the ancient practice of irrigation as that west of the one hundredth, and more recently the ninety-seventh meridian. The 17 Western States wholly or partially within it contain nearly 95 percent of all irrigated area in the United States. Most of the remainder is in Arkansas, Florida, Louisiana, and New Jersey. Water Rights.-Irrigation is not possible with- out water, and the legal aspects of its use for irri- gation will first be considered. They have been shaped by numerous provisions of constitutions and statutes, and thousands of court decisions concerning water-right controversies. It should be noted that volume 3 of the Commission's re- port contains summaries of the water law of the 17 Western States. A right to use water is held to be a property right. Generally deemed best adapted to the needs of subhumid areas, the appropriation doc- trine of "first in time-prior in right" obtains in each of the Western States, either exclusively or in varying combination with the fundamentally divergent riparian doctrine. Under the riparian doctrine, prevailing in the East, only an owner of land overlying or riparian to a watercourse may make reasonable use of waters, and only on his overlying or riparian lands. The genesis of the appropriation doctrine is often linked with the early customs and practices of miners, the Mormon pioneers, and Spanish missionaries in the Southwest. But perhaps the dominant influence was the arid character of vast portions of the West in combination with quantitatively disproportionate, highly irregular, and maldistributed stream flow. As the normal flow of western streams ap- proaches exhaustion, growing demands on ground water focus attention on its related legal principles, the crystallization of which has been slower than in the case of those pertaining to surface streams. Little Federal legislation on the subject exists. Related legal problems as re- viewed by the courts have involved efforts to dis- tinguish between ground water in a defined chan- nel or in a saturated basin, and percolating water. 285 |